Constitutional recognition of First Nations is essential for justice

The legal system will not be truly just until it works equally well for Indigenous Australians says the former NSW Chief Justice.

Former NSW Chief Justice Tom Bathurst. Picture: Toby Zerna

Constitutional recognition of Indigenous Australians is a necessary prerequisite for a just legal system, retired NSW chief justice Tom Bathurst has told a gathering of senior lawyers and judges.

“A just legal system is not one which is only just to most people,” Mr Bathurst said in a speech to a Law Society of NSW dinner on Monday. “We won’t achieve a system that is just until First Nations communities and elders are not merely consulted but have an active role in the formation of the laws and processes which affect them, including, I think, constitutional recognition.”

Mr Bathurst, who retired this month at 74 after almost 11 years as chief justice, also canvassed improvements to the system over the years such as the rise of alternative dispute resolution, the introduction of judicial intervention by way of case management and an increasing recognition that it is important for people who pass through the justice system to believe they have been heard.

“Research indicates that if parties feel they have been treated fairly, they are more likely to view even an unfavourable outcome as substantively fair and comply with it,” he said.

He credited former High Court justice Michael Kirby with triggering a change in culture in the mid-1980s when he was president of the NSW Court of Appeal.

“Before that (the Court of Appeal) could be a terrifying place to appear. Justice Kirby brought to that court the previously rare quality of civility, which eventually filtered down to other parts of the court and other courts of the state, so that people were more and more able to feel they had received a fair hearing.”

However, Mr Bathurst returned to the theme of justice for Indigenous Australians when he urged the adoption of a more holistic view of the legal system given the risk that “while the court might fulfil justice in the narrow sense, the broader sense may be neglected”. He stressed the importance of “solution-based courts such as the Drug Court” and the necessity of “focusing on particular problems such as over-incarceration of First Nations peoples. What might be described as therapeutic justice will become increasingly important”.

Mr Bathurst said the “failures of our branches of government are systemic”. “Aboriginal and Torres Strait Islander young people, when compared with non-Indigenous peers, are less likely to receive a police diversionary option and are more likely to be arrested, have bail refused and to be sentenced to detention.”

While there was no one-size-fits-all solution, it was important to recognise that making progress towards a more just system meant adopting “a broader understanding of justice, or the root causes of injustice”.

“In the case of significant injustices within our legal system in the criminalisation and over-incarceration of First Nations people, while resource allocation by government to communities, and commitment by courts to addressing these issues is important, it is not sufficient,” Mr Bathurst said.

The dinner was attended by luminaries including NSW Governor Margaret Beazley and Mr Bathurst’s successor, Chief Justice Andrew Bell. Law Society of NSW president Joanne van der Plaat told the gathering one of her priorities would be pushing for stand-alone human rights legislation for the state and that the Law Society had advocated for a bill of rights as early as 2000.